The opinion
J-S62010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LUIS COLON,
Appellant No. 3481 EDA 2012
Appeal from the Judgment of Sentence entered November 16, 2012,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0005223-2010
and CP-51-CR-000973-2011
BEFORE: ALLEN, OLSON, and OTT, JJ.
MEMORANDUM BY ALLEN, J.: FILED OCTOBER 06, 2014
imposed after the trial court determined he violated the conditions of his
probation. We affirm.
The trial court summarized the pertinent facts and procedural history
as follows:
On September 9, 2010, [Appellant] was found guilty of
criminal trespass, graded as a felony of the second degree. On
November 10, 2010, the trial court sentenced [Appellant] to nine
to twenty months of incarceration followed by two years of
probation. On August 17, 2011, [Appellant] pleaded guilty to
a negotiated sentence of eleven and a half to twenty-three
months of incarceration followed by two years of probation.
violation of his parole for the criminal trespass conviction. Also,
on the criminal trespass conviction and sentenced him to the
balance of his back time followed by two years of probation.
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On November 19, 2011, the trial court granted
[Appellant] receive mental health and drug/alcohol treatment at
Eagleville Hospital. On December 12, 2011, [Appellant] was
released from custody and transported to the Eagleville Hospital
for inpatient treatment. On January 17, 2012, [Appellant] was
released from Eagleville because he successfully completed
inpatient treatment at that facility.
On January 18, 2012, just one day after being released
from Eagleville Hospital, Philadelphia police officer Mark Brown
responded to Third and Cambria Streets in Philadelphia where he
observed the complainant, Lynette Santiago, crying, yelling and
Santiago told Officer Brown that [Appellant] punched her in the
face causing her lip to bleed. Officer Brown observed that
Santiago was bleeding from her lower lip, had scratches on her
face, and that her shirt was torn. On January 27, 2012,
[Appellant] was charged with simple assault for the January 18,
2012 incident.
On September 5, 2012, the Commonwealth filed a Motion
to Proceed with Probation Violation Hearing Pursuant to
Commonwealth v. Daisey Kates, 305 A.2d 701 (Pa. 1973).
On September 19, 2012, the trial court conducted the Daisey
Kates hearing. At the end of the hearing, the trial court found
[Appellant] in violation of both his parole/probation matters,
determined a new sentence of total confinement was warranted.
On November 16, 2012, the trial court sentenced [Appellant] to
new sentences of one and a half to five years of incarceration on
the criminal trespass conviction and a consecutive two and a half
to seven years of incarceration on the PWID conviction.
Trial Court Supplemental Opinion, 2/11/14, at 1-2 (citations to notes of
testimony omitted).
Appellant filed a petition to vacate and reconsider sentence nunc pro
tunc on November 29, 2012, and on November 30, 2012, the trial court
entered an order approving the nunc pro tunc filing but denying the petition.
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Appellant filed a timely notice of appeal on December 17, 2012, and on
December 20, 2012, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant did not file a timely Pa.R.A.P. 1925(b) statement and on July 10,
2012; nonetheless, the trial court filed an opinion pursuant to Pa.R.A.P.
1925(a).
On July 26, 2013, Appellant filed a motion to vacate the briefing
schedule and remand the certified record to the trial court for completion of
the appellate record. On August 20, 2013, thi
motion and remanded the record. Appellant subsequently filed a statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and on
February 11, 2014, the trial court filed a supplemental Pa.R.A.P. 1925(a)
opinion.
Appellant presents the following issues for our review:
1. Did not the [trial] court err when it admitted hearsay
statements that a non-testifying complainant made
while under the influence of PCP, where such
re
right to confrontation?
2. Was not the evidence introduced at the probation
revocation hearing insufficient as a matter of law to
establish a technical violation of probation?
3. Did not the [trial court] abuse its discretion and violate
the Sentencing Code by sentencing [A]ppellant to four
to twelve years state incarceration, a manifestly
excessive violation of probation sentence, for a
technical violation of probation?
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In his first issue, Appellant argues that the trial court erred when it
permitted Officer Brown to testify about out-of-court statements made to
him by Ms. Santiago. Specifically, Appellant argues that the trial court erred
tatement to Officer Brown that Appellant
had assaulted her fell within the excited utterance exception to the hearsay
rule.
With regard to the excited utterance exception, our Supreme Court
recently explained:
As is well-settled, excited utterances fall under the common
law concept of res gestae. Res gestae statements, such as
excited utterances, present sense impressions, and expressions
of present bodily conditions are normally excepted out of the
hearsay rule, because the reliability of such statements are
established by the statement being made contemporaneous with
a provoking event. While the excited utterance exception has
been codified as part of our rules of evidence since 1998, see
Pa.R.E. 803(2), the common law definition of an excited
utterance remains applicable, and has been often cited by this
Court:
[A] spontaneous declaration by a person whose mind
has been suddenly made subject to an overpowering
emotion caused by some unexpected and shocking
occurrence, which that person has just participated in
or closely witnessed, and made in reference to some
phase of that occurrence which he perceived, and this
declaration must be made so near the occurrence both
in time and place as to exclude the likelihood of its
having emanated in whole or in part from his
reflective faculties.... Thus, it must be shown first,
that [the declarant] had witnessed an event
sufficiently startling and so close in point of time as to
render her reflective thought processes inoperable
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and, second, that her declarations were a spontaneous
reaction to that startling event.
The circumstances surrounding the statements may be sufficient
to establish the existence of a sufficiently startling event.
Commonwealth v. Murray, 83 A.3d 137, 157-158 (Pa. 2013) (citations
omitted).
At the September 19, 2012 revocation hearing, in concluding that Ms.
Santi
on the credible the testimony of Officer Brown that on January 18, 2012,
Officer Brown further noticed that Ms. Santiago had scratches on her face
and fresh blood on her lip and that her shirt was torn. Id. at 7-8, 11-12.
Officer Brown asked Ms. Santiago what happened, to which she immediately
responded that Appellant had struck her and punched her. Id. at 11. Officer
Brown additionally testified that Ms. Santiago appeared to him to be under
the influence of narcotics based on her having a blank stare and blurred
speech. Id. at 15. Officer Brown also observed that Appellant was lying in
hands. Id. at 16. When Officer Brown attempted to question Appellant,
d not want to discuss
Id. at 12. Thereafter, Ms. Santiago also
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refused to answer any more questions or provide any more information to
police. Id. at 12-13.
t
Moreover, the trial court re
proximity to Ms. Santiago, as well the fact that both of their injuries were
utterance exception to the hearsay rule because: (1) Officer
stress and trauma of suffering the observed injuries, including
her elevated voice, frantic and upset demeanor, immediate
responses to questions without reflection, torn clothing,
scratches on her face, and fresh blood from her lip, (2) Santiago
spoke with Officer Brown shortly after sustaining her injuries,
while [Appellant] was still laying on the ground and a crowd was
still gathered, and (3) the similar injuries to [Appellant], who
and uncooperative demeanor.
Trial Court Supplemental Opinion, 2/11/14, at 4 (citations omitted).
Upon review, we find no error
Although Appellant argues that Ms.
result of her having ingested PCP, the trial court, within its province as
factfinder, did not find this argument persuasive. N.T., 9/19/12, at 23.
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Instead, the trial court reasoned that although Officer Brown testified that he
constituted mere supposition and was not supported by any test results or
statements by Ms. Santiago that she was in fact under the influence of a
controlled substance. Id. Rather, the trial court concluded that based on
of her having experienced a startling event. See Murray, 83 A.3d at 157-
sufficient to
Additionally, we note that
which otherwise qualifies as an excited utterance, is not precluded from
falling within the excited utterance exception to the hearsay rule when made
Commonwealth v. Jones, 912 A.2d 268,
282-283 (Pa. 2006) (citations omitted). Therefore, the fact that Ms.
Santiago identified Appellant as her assailant only after Officer Brown asked
her what happened does not disqualify her statement from the excited
utterance exception to the hearsay rule. Id.
Appellant next argues that the trial cour
out-of-court statement violated his right to confrontation under the Sixth
Amendment, and additionally that the Commonwealth failed to demonstrate
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-of-
at 23-26.
With regard to the Sixth Amendment fight to confrontation, this Court
United States Constitution provides that [i]n all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with the witnesses against
Commonwealth v. Wantz, 84 A.3d 324, 337 (Pa. Super. 2014)
(citations and internal quotations omitted).1 Probation and parole revocation
hearings however, are not equivalent to criminal prosecutions. Rather,
the full panoply of rights due a defendant in a criminal trial does not apply to
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1
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d
177 (2004), the United States Supreme Court held that the Confrontation
Clause of the Sixth Amendment prohibits the use of testimonial hearsay
obtained by police officers against a criminal defendant, even if such hearsay
is reliable, unless the defendant has the opportunity to cross-examine the
Commonwealth v. Gatlos, 76 A.3d 44, 63 (Pa.
Super. 2013). Here, Appellant argues that Ms. Santiag -of-court
Crawford, the
Commonwealth could not deny Appellant the right to confront and cross
-of-court statement
was therefore constitutional -26.
Crawford was decided, the majority of jurisdictions have
held that Crawford concerns only Sixth Amendment confrontation rights in
criminal prosecutions and that because parole or probation revocation
proceedings are not criminal prosecutions, neither Crawford nor the Sixth
Amendment Confrontation Clause applies to parole or probation revocation
State v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (Neb.,
2014). Rather, at a probation revocation hearing, hearsay is admissible
Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009).
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probation revocation. Probation is a suspended sentence of incarceration
served upon such terms and conditions as imposed by the sentencing court.
Probation revocation requires a truncated hearing by the sentencing court to
determine whether probation remains rehabilitative and continues to deter
future antisocial conduct. Such a hearing takes place without a jury, with a
Commonwealth v. Holder, 805 A.2d 499, 503-504 (Pa. 2002). At a
probation or parole revocation hearing, the following procedural safeguards
apply:
(a) written notice of the claimed violations of [probation or]
parole; (b) disclosure to the [probationer or] parolee of evidence
against him; (c) opportunity to be heard in person and to
present witnesses and documentary evidence; (d) the right to
confront and cross-examine adverse witnesses (unless
the hearing officer specifically finds good cause for not
allowing confrontation);
body such as a traditional parole board, members of which need
not be judicial officers or lawyers; and (f) a written statement by
the factfinders as to the evidence relied on and reasons for
revoking [probation or] parole.
Commonwealth v. Ferguson, 761 A.2d 613, 617-618 (Pa. Super. 2000)
quoting Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1762, 36
L.Ed.2d 656 (1973) (emphasis added).
Thus, pursuant to Gagnon, supra, an out-of-court statement of an
allowing the confrontation. As the Commonwealth Court has observed,
hearings), has not been legislatively defined and the scant case law on the
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Grello v. Com., Pennsylvania Bd. of Probation and Parole, 477 A.2d 45
(Pa. Cmwlth. 1984).
At the revocation hearing in this matter, the trial court determined
Commonwealth had demonstrated that Ms. Santiago
the excited utterance exception. N.T., 9/19/12, at 20. The trial court
-of-court statement] is determined to be
hearsay and not subject to an exception to the hearsay rule ... would [the
trial cour Id. at 20-21.
-of court statement fell within the excited
utterance exception, the trial court accordingly declined to make a separate
ed for depriving Appellant of his right
to confront Ms. Santiago.
Appellant argues, however, that the trial court was required to make a
confrontation, regardless of whether Ms. San
Given the dearth of case law on this issue, we look for guidance to the
Commonwealth Court, which, addressing the admissibility of hearsay
testimony in parole and probation revocation hearings, has regularly
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unavailable may be based upon a finding of some intrinsic indicia of
Majors v.
Pennsylvania Bd. of Probation and Parole, 808 A.2d 296, 298 (Pa.
Cmwlth. 2002); see also Rodriguez v. Com., Pennsylvania Bd. of
Probation & Parole, 516 A.2d 116 (Pa. Cmwlth. 1986). Here, at the
revocation hearing, the trial court established that the challenged
under the stress of a startling event, and that her identification of Appellant
as her assailant was corroborated by other evidence of record including the
visibly fresh injuries to her face and the fact that Appellant was in close
proximity to her at the time and displayed injuries of his own. Thus, in
reaching its conclusion that the challenged statements constituted an excited
stating on the record the reasons for its belief that the challenged
statements were reliable.
To the extent that Appellant argues that the Commonwealth was
unavailability at trial, our review of the record reveals that Officer Brown
testified that on the date of the incident, after Ms. Santiago initially stated
that Appellant had assaulted her, Ms. Santiago subsequently refused to
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several times if she would continue to elaborate to what happened, and she
refused. I asked her if she would be interviewed by detectives further in
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and left the scene. Id. at 17. Under the more relaxed standards applicable
t
speak with police, the Commonwealth demonstrated the requisite good
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of-court statement.
In his second issue, Appellant argues that the evidence was insufficient
-
challenge to the sufficiency of the evidence is a question of law subject to
plenary review. We must determine whether the evidence admitted at trial
and all reasonable inferences drawn therefrom, when viewed in the light
most favorable to the Commonwealth as the verdict winner, is sufficient to
support all elements of the offenses. A reviewing court may not weigh the
evi
Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007)
(citations and internal quotations omitted).
sound discretion of the trial court and that court's decision will not be
disturbed on appeal in the absence of an error of law or an abuse of
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Id
court must balance the interests of society in preventing future criminal
conduct by the defendant against the possibility of rehabilitating the
defendant outside of prison. In order to uphold a revocation of probation,
the Commonwealth must show by a preponderance of the evidence that a
defendant violated his Commonwealth v. Allshouse, 33 A.3d
reason for revocation of probation need not necessarily be the commission of
or conviction for subsequent criminal conduct. Rather, this Court has
repeatedly acknowledged the very broad standard that sentencing courts
Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa. Super. 2010) (citations
and internal quotations omitted).
whenever it is shown that the conduct of the probationer indicates the
probation has proven to have been an ineffective vehicle to accomplish
rehabilitation and not sufficient to deter against future antisocial conduct
Id.
Here, at the September 19, 2012 revocation proceeding, after hearing
the testimony of Officer Brown, the trial court concluded that the
Commonwealth had demonstrated by a preponderance of the evidence that
Appellant had violated his probation. The trial court explained:
[The Commonwealth] demonstrated by a preponderance of the
evidence, that [Appellant] engaged in assaultive conduct, that
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probation was ineffective to rehabilitate [Appellant], and that
[Appellant] would likely commit another crime if he were not
imprisoned. The trial court based its decision upon the evidence
that [Appellant] punched Lynette Santiago in her face causing
her lip to bleed and that Santiago had scratches on her face and
her shirt was torn. Such evidence is more than adequate to
confinement. Such sentence was also essential to vindicate the
authority of the trial court given that [Appellant] failed to comply
with the terms of his supervision only one day after being
released from Eagleville Hospital.
Trial Court Opinion, 7/10/13 at 4 (citations omitted).
The burden of proof for establishing a violation of probation is a
preponderance of the evidence, lesser than the burden in a
criminal trial of proof beyond a reasonable doubt. But there are
other noteworthy differences between a probation revocation
hearing and a criminal trial, and the manner in which each
proceeding affects the other also is significant:
The focus [of] a probation hearing, even though prompted by a
subsequent arrest, is whether the conduct of the probationer
indicates that the probation has proven to be an effective vehicle
to accomplish rehabilitation and a sufficient deterrent against
future anti-social conduct. It must be emphasized that a
probation revocation hearing is not a trial: The court's purpose
is not to determine whether the probationer committed a crime.
... The degree of proof necessary for probation revocation is less
than that required to sustain a criminal conviction. Probation
may be revoked on the basis of conduct which falls short of
criminal conduct.
Commonwealth v. Castro, 856 A.2d 178, 180 (Pa. Super. 2004) (citations
and internal quotations omitted); see also Ortega, supra
before us, therefore, is not whether the evidence admitted at the VOP
hearing would, if admitted at trial, suffice to convict [the appellant] beyond a
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reasonable doubt ... but whether it showed by a preponderance of the
evidence that probation had proven ineffective in rehabilitating [the
find no error in t
was sufficient to demonstrate, by a preponderance of the evidence, that
ineffective in accomplishing rehabilitation and had not deterred future
antisocial conduct.
Appellant next argues that the trial court abused its discretion when it
sentenced him to four to twelve years of incarceration. Such a challenge to
the discretionary aspects of a sentence is not appealable as of right. Rather,
Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. §
9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.
2004).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant's brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code. The third and fourth of
these requirements arise because Appellant's attack on his
sentence is not an appeal as of right. Rather, he must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of these
four requirements, we will then proceed to decide the
substantive merits of the case.
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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations
omitted); see also Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.
sentence, a criminal defendant needs to preserve challenges to the
discretionary aspects of that new sentence either by objecting during the
revocation sentencing or by filing a post-sentence motion.").
Here, Appellant preserved his claim in his motion for reconsideration,
and filed a timely notice of appeal.2 Appellant has additionally included in
his brief a concise statement pursuant to Pa.R.A.P. 2119(f). See
Brief at 15-
him to a term of total confinement based solely on a technical violation
raises a substantial question for our review. See Commonwealth v.
Crump
sentence of total confinement after the revocation of probation for a
technical violation, and not a new criminal offense, implicates the
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000);
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2
nunc pro tunc motion for reconsideration was
untimely. However, on November 30, 2012, the trial court entered an order
approving the nunc pro tunc filing, even though it denied the motion on its
merits, thereby permitting Appellant to preserve his discretionary claim.
See Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 724, n.1 (Pa. Super.
permit a post-sentence motion to be filed nunc pro tunc within thirty days
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Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006
claim that a particular probation revocation sentence is excessive in light of
its underlying technical violations can present a question that we should
Our standard of review is well-settled. We have explained:
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on
appeal. An abuse of discretion is more than an error in
judgment a sentencing court has not abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012).
In determining whether a sentence is manifestly excessive, the
discretion, as he or she is in the best position to measure factors
and
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003).
Upon revoking probation, a sentencing court may choose from any of
the sentencing options that existed at the time of the original sentencing,
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal
quotation marks and citations omitted). However, 42 Pa.C.S.A. § 9771(c)
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provides that once probation has been revoked, a sentence of total
confinement may only be imposed if any of the following conditions exist:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will
commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the
court.
42 Pa.C.S.A. § 9771(c).
following revocation of probation ... the court shall make as a part of the
record, and disclose in open court at the time of sentencing, a statement of
the reason or reasons for the sentence imposed [and] [f]ailure to comply
with these provisions shall be grounds for vacating the sentence or
Commonwealth v.
Cartrette, 83 A.3d 1030, 1040-1041 (Pa. Super. 2013) (internal quotations
omitted); 42 Pa.
discourse for its reasons for imposing a sentence or specifically reference the
statute in question, but the record as a whole must reflect the sentencing
court's consideration of the facts of th
Crump, 995 A.2d at 1282-1283.
Here, at the November 16, 2012 sentencing hearing, the trial court
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health and substance abuse problems, as well as his family circumstances.
N.T, 11/16/12, at 5-6. Additionally, the trial court heard from Appellant,
who expressed his remorse for his actions, and outlined his efforts at
rehabilitation and his attempts to secure employment. Id. at 10-12. The
trial court also had the benefit of a pre-sentence investigation report which
included a mental health analysis. The trial court then set forth on the
record the reasons for its sentence as follows:
[T]he Commonwealth is requesting a five-to-ten year
sentence. The defense is asking for a period of time served. ...
Let me highlight the following presentence investigation, which is
that [Appellant] had the benefit of juvenile supervision, which
despite that benefit, was not successful. Given the later
convictions, [Appellant has] had many revocations. Also, several
violent convictions, including robbery, resisting arrest and simple
assault.
[Appellant has] had minimal employment ... although [he]
had some successful treatment, and I do give [him] that.
[Appellant has] had successful treatment with the program in
unsuccessful attempt of treatment.
the protection of the public as well as rehabilitative needs,
should be 1½ to five years on the criminal trespass.
Consecutive to that would be 2½ to seven years on the
possession with intent to deliver. Bringing the total sentence to
four to twelve years of state time.
N.T., 11/16/12, at 12-13.
Upon review, we discern no abuse of discretion, Simmons, supra,
where the trial court considered the appropriate factors in concluding that
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revocation and a sentence of
imprisonment for Appellant who engaged in assaultive conduct one day
after his release from inpatient treatment for mental health and substance
abuse issues was essential to vindicate the authority of the court.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2014
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